Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

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Tuesday, 04 May 2010

Liebman on Justice Stevens

Columbia Law prof James Liebman contributes an essay to SCOTUS Blog's appreciation of Justice John Paul Stevens. It's titled, "Justice Stevens as Legal Innovator: The Capital Cases." Liebman clerked for Justice Stevens in the Court's 1978-79 term. He's the co-author ofA Broken System:
Error Rates in Capital Cases, 1973-1995, published in 2000, and A Broken System, Part II: Why There Is So Much Error
in Capital Cases and What Can Be Done About It, published in 2002.

Here's an extended excerpt from the beginning of this must-read:

As he prepares to retire from the Supreme Court, Justice Stevens is
justly being hailed for his intellect, independence, leadership, and
grace. I would add another encomium: innovative legal problem solver. I
don’t mean someone who looks to the law to solve social problems. I mean
a judge who looks to the law to solve its own problems – someone who
believes deeply in the law’s integrity but instead of assuming the law
is perfect, assumes it has a capacity for self-correction.

The meaning of the Eighth Amendment as applied to the death penalty
is an example of a legal problem Justice Stevens has led the Court in
trying to solve. The Eighth Amendment is problematic, of course, because
it obliges judges to invalidate “cruel and unusual punishments” while
providing so little evidence of its meaning that it tempts judges to
enforce their own, not the law’s, values. Nor are there easy fixes, such
as Justice Scalia’s idea that the provision only bans punishments not
authorized by statute – as if “cruel and unusual” meant “cruel and
illegal” and didn’t bear at all on whether, for example, Congress or a
state legislature could prescribe death as a punishment for illegal
immigration.

Justice Stevens joined the Court soon
after Furman v. Georgia (1972) interpreted the
Eighth Amendment to bar wholly discretionary death sentencing. Every
Justice wrote a separate opinion, and no two of the five in the majority
agreed on the same Eighth Amendment rationale. Justices Brennan and
Marshall thought the death penalty was cruel and unusual per se for
different reasons. Justice Douglas found something like an equal
protection violation in existing practice, given disparities by race and
wealth. Justice White found more of a substantive due process
violation: Capital convictions too rarely prompted death verdicts to
provide a deterrent or retributive justification for state killing.
Justice Stewart found a procedural due process problem: Absent
standards, there was no explanation for why one person got death and
another didn’t.

In five cases decided on July 2, 1976 – Gregg v. Georgia,Proffitt v. Florida,Jurek v. Texas,Woodson v. North Carolina, andRoberts v.
Louisiana – Justices Stewart, Powell, and Stevens jointly
authored opinions reaching three conclusions: (1) The death penalty for
murder isn’t always constitutional or unconstitutional; (2) Louisiana
and North Carolina could not punish all murders with death and instead
had to “individualize” death sentencing; (3) on their faces, Florida,
Georgia and Texas’s “guided discretion” statutes held out a prospect of
constitutionally identifying murders sufficiently egregious to warrant
death, but determining whether they did so in practice would require
ongoing scrutiny. The remaining Justices voted either to validate or
invalidate all five statutes, so the Stewart-Powell-Stevens opinions
provided the only consistent basis for the mixed decisions.

By reversing the usual preference for as-applied over facial review,
and by vowing to scrutinize the details of statutes and sentences to
decide the constitutionality of particular capital-sentencing cases,
categories and patterns, the plurality committed the Court and States to
a process of cooperatively resolving remaining interpretive problems.
Over the next seven years, a series of decisions in which only Justices
Stevens and Stewart (when the latter was still on the Court) were
consistently in the majority fleshed out this innovative approach.

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.